Jammu & Kashmir High Court
Mandeep Kour And Another vs State And Others on 23 May, 2022
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on :06.04.2022
Pronounced on 23.05.2022
OWP No. 469/2016
CM No. 8895/2021,
CM No. 9192/2021,
CM No. 1777/2022,
CM No. 6576/2021,
CM No. 3312/2020,
CM No. 3313/2020 &
IA No.2/2016
Mandeep Kour and another .....Petitioner(s)/Appellant(s)
Through: Mr. K.S.Johal, Sr. Advocate with
Mr. Karman Singh Johal, Advocate
Vs
State and others ..... Respondent(s)
Through: Mr. Raman Sharma, AAG for R- 1 to 3
Mr. Navneet Dubey, Advocate for R-4.
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
1. Culmination of a preliminary inquiry, initiated at the behest of complainant-respondent No.4, namely, S.Surjeet Singh S/O S. Ishar Singh R/O Dhar Channi Dewano, Tehsil Khour, District Jammu by the Vigilance Organization Jammu, (now ACB) into registration of FIR No. 09/2016 for the commission of offences punishable under Sections 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC and consequent initiation of investigation has prompted the petitioners 2 OWP No. 469/2016 to file the instant petition challenging the said FIR and seeking quashment of the same.
2. Facts, in brief, leading to filing of the present petition, as averred in the petition by the petitioners, are that vide Advertisement Notice No.15/2014 dated 27.07.2014 two posts of Rehber-e-Taleem (for short "RET")Teachers were advertised for Primary School, Dhar Channi Dewano, Mohalla Sardaran da, Zone Khour and the said advertisement notice is alleged to have been published in the local daily newspaper dated 27.07.2014. In pursuance to the said notice, besides the petitioners, two more candidates, namely, S. Nirmal Singh S/O S. Arjan Singh and Harjeet Kour D/O Gurdial Singh applied for the said posts. Subsequently, after going through the selection process, as per merit position prepared by the concerned selection authority, the petitioners stood at S.Nos 1 and 2 respectively in the final select list that was prepared by the Village Education Committee, which was finally issued by the Directorate of School Education, Jammu. The engagement orders of both the petitioners, being selected candidates, were issued vide No. ZEO/SSA/533-36 dated 20.08.2014.
3. Thereafter, the said selection of the petitioners came to be challenged by way of two separate writ petitions being SWP No.1330/2015 titled "Daljit Kour Vs. State and others" and SWP No. 1331/2015 titled "Sarbjeet Kour Vs. State and others" before this Court, but, the selection of the petitioners was not stayed and only their appointments were ordered to be subject to the outcome of the writ petitions. As per the allegations, the 3 OWP No. 469/2016 petitioners in SWP No.1330/2015 and SWP No.1331/2015 having failed in their endeavor to get the selection of the petitioners herein, stayed by this Court, approached the Vigilance Organization, Jammu(VOJ) for registration of FIR, thus, the present writ petition came to be filed by the petitioners seeking quashment of FIR in question.
4. The petitioners have sought quashment of FIR No.09/2016 registered by Police Station VOJ, on the grounds inter alia that the same has been registered merely on assumption and presumption as the basic ingredients required for constitution of offences alleged in the said FIR are lacking; that the petitioners cannot be said to be conspirators as they have faced the selection process and have fallen in merit on the basis of which final select list was issued; that no allegations of selection being faulty have been made by the complainant so the question of petitioners being beneficiaries of illegal selection process is not coming forth from the facts alleged in the complaint on the basis of which preliminary inquiry was initiated; that even if, the allegations made in the FIR are taken on their face value and accepted in entirety, still the same do not prima-facie constitute commission of offences alleged against the petitioner much less make out a case against them; that the allegations made in the FIR are so absurd and improbable that on the basis of said allegations, no prudent man can reach to a conclusion that there are sufficient grounds for proceedings against the petitioners so, the FIR which has been manifestly intended with malafide and has been lodged with ulterior motives for taking vengeance against the petitioners, is required to be quashed.
4OWP No. 469/2016
5. On notice, separate objections were filed on behalf of respondent No.4 on 13/05/2016 and respondents No.1 to 3 on 27.05.2016. The common objections taken by the respondents are that the present petition filed under Section 561-A is not maintainable as law is well settled that the remedy under Section 561-A Cr.P.C can be invoked/pressed into service only in certain circumstances, but, in the present case keeping in view the allegations contained in the FIR, it can by no stretch of imagination be said that the case of the petitioners fall within the ambit/contours of Section 561-A Cr.P.C.
6. It is further contended that according to the petitioners, they had applied pursuant to the advertisement notice No.15/2014 dated 27.07.2014, but, the fact of the matter is that the advertisement notice in question was never published in any newspaper having circulation in the village nor the said advertisement was pasted on the notice board of the concerned school or Panchayat office. In fact, the said advertisement notice was an outcome of the conspiracy, which the petitioners hatched with the ZEO Khour and CEO Jammu, namely, Mr. Tarsem Lal in order to accommodate the petitioners as the name of the school was changed to Primary School Dhar Channi Dewano, Mohalla Sardaran da when there was no such Mohalla Sardaran da existed on spot. It is also alleged that the select list was outcome of totally arbitrary, discriminatory and illegal process and the same was approved within a day by the then Director School Education and appointment order was issued within one day thereafter on 20.08.2014 which candidly manifest the criminal conspiracy which was entered into by the petitioners with the official respondents.
5OWP No. 469/2016
7. It is projected by the respondents that not only the selection of the petitioners has been found to be not in conformity with the provisions of law, fair play and natural justice, but, the opening of the School, i.e.,NPS Dhar Channi Dewano, Mohalla Sardaran da has been found to be illegal as the same was done without following any legal procedure as is evident from the name itself because the place Mohalla Sardaran da is not a village rather a Mohalla having only less than 250 souls instead of 300 souls, which is the basic requirement for opening a primary school.
8. The respondents have averred that during investigation, it has been found that in response to the verbal communication of the then CEO, Jammu, the then ZEO Khour had submitted the feasibility report for opening of School on 28.07.2014 whereas the accused CEO, Jammu had issued advertisement notice on 26.07.2014 for the engagement on two position of RETs. That ZEO in his feasibility report has clearly mentioned that population of the Mohalla Sardaran da is 250 souls whereas under SSA norms it must be 300 souls. As such, it is claimed on behalf of the respondents that, all the rules and regulations have been thrown to winds in appointment of petitioners which is totally illegal and a product of criminal conspiracy of which the accused-petitioners are a part and parcel.
9. Heard learned counsels for the parties and perused the record.
10. Reiterating the grounds taken in the writ petition, learned counsel for the petitioners has vehemently argued that the only purpose and motive of lodging FIR by the respondent No.4 was to take vengeance against the petitioners because respondent No. 4 happens to be the father-in-law of 6 OWP No. 469/2016 unsuccessful petitioner in SWP No. 1331/2015, namely, Sarbjeet Kour. Therefore, after the said petitioner-Sarbjeet Kour failed in getting selection process stayed from this Court, she got a false and frivolous complaint lodged through her father-in-law before the Vigilance Organization, Jammu without any basis. It has been argued that the sequence of events leading to the final selection of the petitioners right from the date of issuance of advertisement notice would clearly suggest that the selection process was not only fair and transparent, but was also undertaken after following due process of law and this can be gauged from the fact that after preparation of merit list, the same was displayed in the revenue village Dhar Channi Dewano from 04.08.2014 to 10.08.2014 and objections were called from the general public granting seven days‟ time for filing the same. However, when no objections were received, the selection was finalized, and the engagement orders were issued.
11. Mr. Johal, learned Senior counsel vehemently argued that the petitioners who had filed separate writ petitions bearing SWP No.1330/2015 and 1331/2015 did not file any objections to the select list within the stipulated period and subsequently approached this Court by filing writ petitions in which they were unsuccessful in getting the selection list stayed. Learned Sr. counsel further argued that for the commission of offence punishable under Sections 5(1)(d) of the Prevention of Corruption Act, the Investigating Agency must prima-facie prove that the corrupt and illegal means were adopted by the petitioners that too while enjoying a position of public servant whereas in the instant case this important link is missing as the Investigating Agency has failed to show as to what position, as public 7 OWP No. 469/2016 servant, was being enjoyed by the petitioners at the time of the commission of the alleged offences and since the petitioners never enjoyed the position of public servant, prior to their appointment, so the said offence cannot be made out against them.
12. It has been forcefully argued that the Investigating Agency has miserably failed to prove that there was any conspiracy hatched between the petitioners and the official respondents as far as selection of petitioners as RETs is concerned, so FIR No. 09/2016 which has been registered on the basis of assumption and presumption by the VOJ, on the complaint of respondent No.4, is not sustainable in law and the same is required to be quashed.
13. On the other hand, the learned counsel for the respondents No. 1 to 3 has argued that the official respondents have filed status report clearly stating therein that pursuant to a complaint regarding the allegations that the then Chief Education Officer, Jammu Mr. Tarsem Lal after hatching a criminal conspiracy with the beneficiaries (i.e. petitioners)opened a School viz. New Primary School, Dhar Channi Dewano, Mohalla Sardaran da (Zone Khour) and appointed the beneficiaries as RETs illegally and in violation of the prevalent norms. After verification was conducted by the VOJ (now ACB) it emerged that NPS Dar Channi Dewano, Zone Khour was opened in papers only in the year 2014 by the then CEO, Jammu, Mr. Tarsem Lal in abnormal haste and in violation of SSA norms regarding population and expected strength of pupil.
14. Mr. Sharma learned counsel for the respondents 1 to 3 further argued that the status report also discloses that there was no proposal or 8 OWP No. 469/2016 sanction of the competent authority for opening of the said school and that the school existed for a month‟s period (in papers only) and subsequently shown merged with the old Primary School of the village Naiwala which clearly speaks about the malafide intention of the then concerned CEO and ZEO because the said school was opened just to fraudulently adjust the beneficiaries Amarjeet Singh and Mandeep Kour as RET teachers (petitioners herein).
15. Drawing the attention of this Court to the status report it has also been argued that the status report reveals that NPS Dhar Channi Dewano Mohalla Sardaran da has been manipulated/created as a new entity by the then ZEO Khour and CEO Jammu on their own to make backdoor appointments of RETs Amarjeet Singh and Mandeep Kour by keeping the higher ups in dark. That during investigation, it came to fore on the basis of report of Tehsildar Khour dated 28.09.2016, that Channi Dewano and Dhar are revenue villages and there is no village or hamlet as Mohalla Sardaran da. Moreover, there is no mention of advertisement number and date of advertisement by the candidates on their application forms which were not submitted through Village Education Committee as there is no recommendation of VEC on them. It is further contended in the report that the investigation of the case is still in progress.
16. During arguments, it was highlighted that an application (CM No.1777/2022) has been filed by the complainant-respondent No.4 contending therein that vide advertisement notice No.15/2014 dated 27.07.2014 apart from two posts of RETs of Primary School, Lower Kachrial for New Primary School Zone Khour, two more vacancies of RETs 9 OWP No. 469/2016 for NPS, Dhar Channi Dewano, Mohalla Sardaran da, Zone Khour were advertised. The petitioners participated in the selection process for the post of New Primary School, Dhar Channi Dewano, Mohalla Sardaran. Lateron, the petitioners were selected and appointed and they continued thereafter. It is also contended in the application that Smt. Sarbjeet Kour, daughter-in-law of respondent No.4 and Daljit Kour had also filed writ petitions being SWP No. 1331/2015 and 1330/2015 against the selection of the petitioners which were withdrawn. However, thereafter a complaint was filed by respondent No.4-applicant, before the VOJ which resulted into registration of FIR No.09/2016 in Police Station, Vigilance Organization, Jammu for the commission of offences punishable under Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 120-B RPC. It is further pleaded in the application that during the course of investigation, it was revealed that in so far as the petitioners are concerned they are not involved in the commission of offence much less in the alleged conspiracy and that the applicant-respondent No.4 also moved the office of Vigilance Organization, Jammu for showing no interest in the case and for not pursuing FIR, but, the Police is held bent to disturb the applicant and the petitioners. The applicant-respondent No.4 further submitted in the application, that he is no longer interested in pursuing the complaint and also the FIR and he has no objection in case writ petition filed by the petitioners is allowed and the FIR is quashed.
17. At the very outset, it may be stated that the powers possessed by the High Court under Section 561-A of the J&K Code of Criminal Procedure (for short J&K Cr.P.C), are very wide which require great 10 OWP No. 469/2016 caution in its exercise. Court must be careful to see that its decision, in exercise of this power, is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
18. While exercising powers under Section 561-A of the J&K Code corresponding to section 482 of the Central Code of Criminal Procedure (for short Central Cr.P.C), the Court does not function as a court of appeal or revision. Inherent jurisdiction under Section 561-A/Section 482 Cr.P.C though wide in its operation has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae meaning thereby, to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority resulting in injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent advancement of justice. Inherent power, given to the High Court under Section 561-A/482 of Cr.P.C is with the purpose and object of 11 OWP No. 469/2016 advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold.
19. It is also to be kept in mind that the Court cannot permit a prosecution to go on if the case falls in one of the categories enlisted by the Supreme Court in State of Haryana v. Bhajan Lal reported as AIR 1992 SC
604. Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of oppression or harassment. When there is material to indicate that a criminal proceeding is manifestly launched with mala fide intentions and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercising its jurisdiction under Section 561-A Cr.P.C to quash the same.
20. The scope of the jurisdiction of the High Court under Section 561-A of the J&K Code of Criminal Procedure, which is parimateria to Section 482 of the Central Code of Criminal Procedure, has been examined a number of times and several principles which govern the exercise of jurisdiction of the High Court under Section 561-A of the Code has been laid down. A three-Judge Bench of the Apex court of our Country in State of Karnataka v. L. Muniswamy and others reported as 1977 (2) SCC 699, laid down that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. It has been stated in paragraph 7 of the judgment that:
12OWP No. 469/2016
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
21. The judgment rendered by the Supreme Court in the case State of Haryana and others v. Bhajan Lal and others (suprs) has elaborately considered the scope and ambit of Section 482 Cr.P.C and Article 226 of the Constitution of India regarding quashing of the proceedings in criminal investigation. Considering various earlier pronouncements, the Supreme Court listed certain categories of cases, where the power under Section 482 Cr.P.C can be exercised to secure ends of justice or to prevent the abuse of the process of the Court. The relevant para illustrating seven categories of cases where power can be exercised under Section 482 Cr.P.C is as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible 13 OWP No. 469/2016 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
22. While arguing, the learned counsel for the petitioners, urged that the case of petitioners is squarely covered by the illustrations (1), (3), 14 OWP No. 469/2016 (5) and (7) enumerated in Bhajan Lal‟s Case. Therefore, let us examine the allegations leveled in the FIR annexed with the writ petition as Annexure-M and evidence collected during the investigation of said FIR so as to find out whether the criteria laid down in illustration-1 & 3 in Bhajan Lal‟s case (supra) is fulfilled or not. The Vigilance Organization, Jammu in pursuance to verification conducted on a complaint filed by complainant, namely, S.Surjeet Singh, lodged the FIR that the then CEO, Jammu, namely, Tarsem Lal after hatching a criminal conspiracy with the beneficiaries (petitioners herein) and opened a School, namely, New Primary School Dhar, Chhani Dewano, Mohalla Sardaran da, Zone Khour and appointed the beneficiaries as Rehber-e-Taleem (RET) Teachers illegally and in violation of the standing rules. FIR further discloses that during the verification proceedings, it emerged that the NPS, Dhar Channi, Dewano, Zone Khour was opened in papers only in the year 2014 by the then CEO, Jammu in violation of the SSA norms regarding population and existing strength of the pupil. There was no proposal or sanction of competent authority, i.e., Project Director, SSA for opening of said school. The school existed for a month period (in papers only) and subsequently shown merged with old Primary School, Naiwala, which clearly speaks about malafides intention of the suspect that said school was opened only to adjust the beneficiaries as RET teachers. Two sanction orders are alleged to have been issued for opening of the said school by the suspect CEO, Jammu after the completion of selection process of the RET teachers/illegal beneficiaries, namely, Shri Amarjeet Singh Pujwal and Smt. Mandeep Kour. Two posts of RET teachers were advertised and the selections were made when the school not existed on 15 OWP No. 469/2016 ground nor even in papers only. Ultimately, FIR No.09/2016 for the commission of offences punishable under Sections 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC by VOJ was registered against five persons which include the then CEO Tarsem Lal, the then ZEO Surinder Kumar, the then Sr. Assistant in the office of Director, School Education namely Bharat Bushan Chopra and both the petitioners and investigation started.
23. If we pause for a moment and look at the contents of the allegations made in FIR, we would find that the said allegations if taken on their face value, would certainly disclose commission of cognizable offence. Moreover, FIR shows that it was also found that the feasibility report submitted by the then ZEO, Khour, clearly indicates that the requirement for opening of the school were not fulfilled as per the requisite parameters. The whole process is alleged to have been completed by the suspect CEO, Jammu in connivance with the beneficiaries (petitioners) in total contravention of law, rules and procedure and sheer abuse of his official position as CEO, Jammu.
24. As already stated that on the basis of above allegations, FIR under Sections 5(1)(d) read with 5(2) of the Prevention of Corruption Act, Samvat 2006 and 120-B RPC was registered and the investigation was started which was entrusted to Inspector Zafir Amin, Police Station, Vigilance Organization, Jammu. Investigating Officer during investigation has recorded the statements of the witnesses which include complainant- respondent No.4 who not only corroborated the allegations leveled in the complaint, but, also specifically stated that the whole process of selection 16 OWP No. 469/2016 was kept secret by the then CEO, Jammu, namely, Tarsem Lal and ZEO, Khour, namely, Surinder Kumar due to which his daughter-in-law, namely Sarbjeet Kour and some other eligible candidates could not apply for the posts and only the petitioners were selected in arbitrary manner in so called school which existed only in papers. According to the statement of the complainant recorded under Section 161 Cr.PC, there are two revenue villages viz. Village Dhar and Village Channi Dewano, but, no such village as Dhar Channi Dewano, Mohalla Sardaran da exists and the same was manipulated by the selected candidates in connivance with the then CEO, Jammu and ZEO, Khour. Besides this, members of the Village Education Committee were close relatives of the selected candidates. Inspite of the knowledge of this fact neither the CEO, Jammu nor ZEO, Khour objected to the inclusion of the close relatives of selected candidates in the Selection Committee in order to have fairness and transparency in the selection process.
25. The status report placed on record reveals that during the course of investigation of the said FIR, the IO recorded the statements of witnesses under Section 161 Cr.P.C besides seizing some relevant record. However, the original application forms of the petitioners and two other applicants could not be seized as the same were found to have been intentionally destroyed. Not only this, the Joint Director Information and Public Relation, Jammu, namely Namrita Dogra, KAS, has specifically stated in her statement that the IO sought copy of the Advertisement Notice No.15 of 2014 of CEO Jammu but the said notice was never received in their office for publication in newspaper as per record of her office. Therefore, the very 17 OWP No. 469/2016 foundation of the selection process of the two RET teachers made in pursuance to the Advertisement Notice No. 15 of 2014 becomes doubtful and shows that everything was not well in the said selection process.
26. It may be noted that Director School Education, Jammu also ordered an enquiry in the selection of petitioners which was conducted by Joint Director (Trg)/Principal SIE who in his report found the following irregularities and violations;
a) That the SSA norms were not followed for the opening of the new School and beneficiaries were engaged as RET Teachers in Primary School, Dhar Channi Dewano, Mohalla Sardaran in violation of SSA norms;
b) That existence of a separate village Dhar, Channi Dewano (Mohalla Sardaran) has been manipulated by Shri Surinder Kumar, the then ZEO Khour with the involvement of CEO Jammu and Dealing Assistant with the intention to engage the beneficiaries as RET Teachers in Primary School, Dhar Channi Dewano, Mohalla Sardaran, whereas, the same does not exist anywhere as per the Revenue record;
c) That the Feasibility Report submitted by ZEO was not based on facts and Primary School, Primary School, Dhar Channi Dewano was already functioning in the same locality;
d) That the New School was opened at a distance of less than 500 meters from the already existing school in the locality;
e) That the New Primary School, Dhar Channi Dewano, Mohalla Sardaran was not made functional at village Dhar or Channi Dewano upto ending January 2015, whereas beneficiaries were engaged as RET much earlier 18 OWP No. 469/2016 to the opening and functioning of said school and were getting the salary;
f) That the new school was not made functional in the village, but both of these schools are now functional at Migrant camp, Naiwala; and
g) That Shri Gurdev Singh, father of Amarjeet Singh was a Sarpanch, Shri Gurdyal Singh father-in-law of Mandeep Kour was a Naib-Sarpanch of the said village, Ms. Tavinder Kour was wife of Amarjeet Singh and all three signed as VEC members on the panel.
27. The statement of another witness recorded by the Investigating Officer, namely, Namrita Dogra, KAS, Joint Director Information and Public Relation, Jammu assumes importance as she has stated in her statement recorded under Section 161 Cr.PC that during investigation, the Investigating Officer also sought copy of the Advertisement Notice No.15/2014 from CEO, Jammu, but as per the record of her office the said advertisement notice was never received by the office of the Joint Director, Jammu for publication in the newspaper so prima-facie it appears that advertisement notice on the basis of which the selection process for selection of two RETs for Primary School, Dhar Channi Dewano Mohalla Sardaran da was initiated was either not issued at all or if it was issued then the same was not given wide publication by the issuing authorities, namely, CEO, Jammu which discloses his intention to select the petitioners in a hasty manner.
28. It may not be proper for this Court at this stage to scrutinize the statements of all the witnesses recorded so far by the Investigating Officer during investigation of FIR in question as it may influence the trial Court in the event of trial. However, perusal of the statements of the complainant, 19 OWP No. 469/2016 other witnesses noted above and the conclusion drawn by the IO in the status report is a sequel to the fact that the allegations leveled against the petitioners if taken on their face value would not only amount to commission of offence alleged against them and make out a case against the accused named in the complaint, but, would also disclose the commission of cognizable offences. Hence, the submissions of Mr. Johal, learned Senior Counsel for the petitioners that the allegations leveled by the complainant in the complaint if taken on their face value would not make out a case against the petitioners and that the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same would not disclose the commission of any offence and that the allegations are absurd and inherently improbable and the criminal proceeding is manifestly attended with mala fide and instituted maliciously with an ulterior motive for wreaking vengeance, are devoid of merit, so the same are rejected.
29. A three-Judge bench of the Supreme Court very recently while hearing a criminal appeal No. 330 of 2021 in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others, after considering and discussion the almost all the important judgments including the celebrated judgment in Bhajan Lal‟s case regarding the scope and power of the High court under Article 226 of the Constitution of India r/w Section 482 Cr.P.C concluded as under:-
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;20 OWP No. 469/2016
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the „rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in 21 OWP No. 469/2016 progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or 22 OWP No. 469/2016 under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps 23 OWP No. 469/2016 to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
30. Keeping in view the facts and circumstances discussed above and the law laid down by the Apex Court of our country in M/s Neeharika Infrastructure Pvt. Ltd. the petitioners have failed to carve out a case in their favour for exercising the extra ordinary jurisdiction. Thus, the writ petition fails and, accordingly, the same is dismissed along with connected CM(s). However, it is made clear that anything said in this order shall not be taken as an expression of opinion on the merits of the case.
31. Investigating Officer shall make all endeavors to complete the investigation with immediate dispatch and take it to the logical end.
(Tashi Rabstan) Judge Jammu 23.05.2022 "Madan Verma-PS‟ Whether order is speaking: Yes Whether order is reportable: Yes